Court File and Parties

Court: COURT OF APPEAL FOR ONTARIO Date: 2023-11-08 Docket: COA-23-CR-0233

Before: Fairburn A.C.J.O., Favreau and Copeland JJ.A.

BETWEEN: His Majesty the King, Respondent and Nickain Jackson, Appellant

Counsel: Victor O’Brien, for the appellant Amy Rose, for the respondent

Heard and released orally: November 3, 2023

On appeal from the sentence imposed by Justice Susan M. Chapman of the Ontario Court of Justice on January 25, 2023.

Reasons for Decision

[1] The appellant pled guilty to one count of possession of a loaded firearm and one count of possession of a prohibited device, which was an overcapacity magazine.

[2] The offences arose from a shootout involving the appellant and others outside of a condominium building on January 26, 2020. The appellant and his associates were ambushed by another group of individuals. In total, 27 bullets were fired. Nine of them came from the appellant’s gun. Some bullets penetrated the building at 3:00 a.m., including one that went through a resident’s bedroom window. The incident was caught on video. The appellant was shot in the leg. He is seen giving his gun to another man who hid it in a snowbank where it was later discovered by the police.

[3] The sentencing judge accepted that the appellant armed himself with a gun because of an incident a few weeks earlier, where he had been shot at while filming a rap video. The appellant is an aspiring rap artist.

[4] The appellant received a global sentence of three years and five months, less pre-sentence custody. After taking into account the pre-sentence custody, calculated with R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575 credit in mind, the appellant was left with a net 629-day sentence.

[5] The appellant says that the sentencing judge erred in a number of ways. He describes the primary error as a failure to properly weigh the multiple mitigating factors operative in this case. This argument goes to the heart of the discretion exercised by sentencing judges, to which this court owes deference.

[6] The sentencing judge took into account all mitigating factors, including those emphasized on appeal. She also properly considered all aggravating factors, of which there were many. The trial judge was alive to the sentencing principles in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, and applied them correctly. The reasons for sentence disclose no error in principle or law, nor is the sentence demonstrably unfit.

[7] Leave to appeal sentence is granted. The appeal is dismissed.

“Fairburn A.C.J.O.” “L. Favreau J.A.” “J. Copeland J.A.”